08-4534-ag
Liu v. Holder
BIA
Laforest, IJ
A200 040 177
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12 th day of January, two thousand ten.
PRESENT:
HON. DENNIS JACOBS,
Chief Judge,
HON. ROSEMARY S. POOLER,
HON. REENA RAGGI,
Circuit Judges.
_______________________________________
WEN YUAN LIU,
Petitioner,
v. 08-4534-ag
NAC
ERIC H. HOLDER JR., ATTORNEY
GENERAL, *
Respondent.
_______________________________________
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder Jr., is automatically substituted for former Attorney
General Michael B. Mukasey as the respondent in this case.
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General, Barry J. Pettinato,
Assistant Director, John D. Williams,
Trial Attorney, United States
Department of Justice, Civil Division,
Office of Immigration Litigation,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Wen Yuan Liu, a native and citizen of the
People’s Republic of China, seeks review of the August 29,
2008 order of the BIA affirming the April 10, 2007 decision of
Immigration Judge (“IJ”) Brigitte Laforest, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Wen Yuan
Liu, No. A200 040 177 (B.I.A. Aug. 29, 2008), aff’g No. A200
040 177 (Immig. Ct. N.Y. City Apr. 10, 2007). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
When the BIA adopts the decision of the IJ and
supplements the IJ’s decision, we review the decision of the
IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417
F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual
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findings, including adverse credibility determinations, under
the substantial evidence standard. See 8 U.S.C. §
1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.
2007). For applications governed by the REAL ID Act of 2005,
the agency may, considering the totality of the circumstances,
base a credibility finding on an asylum applicant’s demeanor,
the plausibility of his or her account, and inconsistencies in
his or her statements, without regard to whether they go “to
the heart of the applicant’s claim.” 8 U.S.C. §
1158(b)(1)(B)(iii); see Matter of J-Y-C-, 24 I. & N. Dec. 260,
265 (B.I.A 2007).
As an initial matter, because Liu fails to raise before
this Court any challenge to the agency’s denial of his CAT
claim, we deem that claim waived. See Yueqing Zhang v.
Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
Regarding Liu’s asylum and withholding of removal claims,
we find that substantial evidence supports the agency’s
adverse credibility determination. For example, the IJ found
that while Liu testified that the cadres had scalded his hand
with hot water, this allegation did not appear in his written
statement or his father’s letter. Moreover, the IJ found that
while Liu’s written statement and his father’s letter alleged
that the cadres had forced him to squat in an uncomfortable
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position for a long period of time, he did not testify to this
allegation on direct or cross examination. The IJ reasonably
relied on these inconsistencies when making her credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii). In
addition, we defer to the IJ’s observations that Liu’s
demeanor during his testimony suggested that he was not
testifying about his actual experiences. See id.; Shu Wen Sun
v. BIA, 510 F.3d 377, 380-81 (2d Cir. 2007). Under the REAL
ID Act, these findings were sufficient to support the agency’s
conclusion that Liu was not credible. See Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
Furthermore, we discern no error in the IJ’s conclusion
that the evidence Liu submitted was insufficient to
rehabilitate his incredible testimony. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
(noting that the weight afforded to the applicant’s evidence
in immigration proceedings lies largely within the discretion
of the IJ); see also 8 U.S.C. § 1158(b)(1)(B)(ii).
Accordingly, the agency’s denial of Liu’s application for
asylum was not improper. Because Liu’s withholding of removal
claim was premised on the same factual predicate as his asylum
claim, the adverse credibility determination was fatal to
both. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By:___________________________
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